[2021] FWC 5063
The attached document replaces the document previously issued with the above code on 16
August 2021.
The original headnote was included in error. This version of the decision includes the
corrected headnote.
Associate to Deputy President Lake
17 August 2021
1
Fair Work Act 2009
s.394 - Application for unfair dismissal remedy
Christine Sandra Becker
v
Greater Bank Limited
(U2021/5464)
DEPUTY PRESIDENT LAKE BRISBANE, 16 AUGUST 2021
Application for an unfair dismissal remedy – whether the applicant resigned – the Applicant
resigned – jurisdictional objection upheld – application dismissed
[1] Ms Christine Becker (the Applicant) has made an application pursuant to s.394 of the
Fair Work Act 2009 (the Act) alleging that the way in which her employment ended with
Greater Bank Limited (the Respondent) constituted a dismissal, and was harsh, unjust or
unreasonable.
[2] The Applicant commenced employment with the Respondent on 28 April 2008 as a
customer service office. Her employment came to an end on 1 June 2021. The Respondent
raised a jurisdictional objection to the application on the basis that the Applicant was not
dismissed, but rather voluntarily resigned on 1 June 2021.
[3] The parties requested that the jurisdictional objection be dealt with on the papers prior
to the filing of material in the substantive application. Directions were issued accordingly, and
material was filed by each party. I have considered all the material filed by each party.
JURISDICTIONAL EVIDENCE AND SUBMISSIONS
Respondent’s material
[4] The Respondent submits that the Applicant voluntarily resigned from her employment
on 1 June 2021, as evidenced by the resignation letter of the same date.
[5] The Respondent asserts that the Applicant’s resignation came during a performance
management process, which arose because the Applicant had repeated and continuing
performance issues and breaches of the Respondent’s procedures which created an ongoing
risk to customers and the Respondent generally. Two formal warnings had been issued in
October 2020 and January 2021 in relation to cash and deposit discrepancies respectively.
[6] Having become aware of other performance issues, the Respondent provided notice to
the Applicant 6 May 2021 that a third performance meeting would be arranged. The meeting
[2021] FWC 5063
DECISION
E AUSTRALIA FairWork Commission
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did not occur until 1 June 2021 because the Applicant had taken leave for personal reasons.
The Respondent submits that the formal warnings letters that the Applicant had previously
received had included termination as a possibility and the fact that the Applicant came with a
resignation letter indicated that she was aware of the seriousness of the meeting.
[7] That formal performance meeting took place on 1 June 2021 with the Applicant, Ms
Kate Russell, an internal Human Resources representative and Mr Scott McCluskey, a
Regional Sales Manager. The Applicant’s husband attended as her support person. At that
meeting, Mr McCluskey discussed the following performance concerns:
“On 6 April 2021, $30.40 coin was left unattended in branch;
On 7 April 2021, failure to follow floor safe maximum limit as per the Random Cash
Drawer and Floor Safe Checks Procedure resulting in $1,555.00 over your drop
safe;
On 8 April 2021, a risk incident was lodged due to failure to complete an alteration
on a business account in line with process;
On 28 April 2021, $10.00 outage where you have not been able to locate the
amount;
On 28 April 2021, failure to follow the cheque deposit procedure; and
On 7 May 2021, $4,500.00 error as a result of failing to process a customer
withdrawal correctly as per the Processing Cash Withdrawals Procedure.”
[8] During this meeting, the Respondent submits, the Applicant was provided an
opportunity to take 48 hours to consider and show cause as to why her employment should
not be terminated. At that point, the meeting notes record the Applicant saying, “If that is the
case I will hand in my resignation” and providing a sealed envelope containing her
resignation. Mr McCluskey asked her why and explained that she could take 48 hours to
respond to the allegations. The Respondent’s evidence is that the Applicant responded, “I
think it would be best if I resign now, I have had enough.”
[9] In light of this exchange, the Respondent asserts the Applicant resigned and did so
before it had a chance to obtain or consider any written response from her.
[10] The Respondent denies the Applicant’s allegation that “the Employee was accordingly
of the view that there were no circumstances under which the Employer was prepared to
obtain and consider the Employee’s response to the allegations properly and fairly”. Further,
the Respondent submits that the meeting notes clearly indicate that the Applicant was allowed
48 hours to provide the Respondent with a written response but instead, the Applicant elected
to resign, effective immediately.
[11] Having provided the letter of resignation, the Applicant also handed over a written
document detailing concerns about her Branch Manager. The Applicant’s husband had noted
at the beginning of the meeting that the Applicant would submit a formal complaint of
bullying and harassment. He was told that could be raised as part of the process. The
Respondent submits that it would have, as per the usual process, considered this information,
prior to making any final determination. It did not have that opportunity because the
Applicant had already resigned.
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[12] The Respondent submits that the Applicant resigned voluntarily on 1 June 2021 to
avoid the potential of her employment being terminated by the Respondent as part of the
ongoing performance management process. Despite the Applicant’s assertions that she had no
other option but to resign, the Respondent contends the Applicant could have instead raised
her concerns regarding her branch manager as part of the show cause process to be
investigated by the Respondent, raised a formal grievance in line with the Respondent’s
Workplace Grievance Management Statement to be managed and investigated, or applied to
the Commission for a stop bullying order if she felt bullied by her Branch Manager. Had the
Applicant not resigned, the Respondent submits that its usual show cause process would have
continued whereby the Applicant’s response would have been considered by senior human
resources and operational leaders who had not been involved in the meeting.
[13] Further, the Respondent denies that the Applicant did not have an opportunity to
improve her performance. The Respondent states that the Applicant had ample warnings,
support and opportunities to improve but simply had not done so. The Respondent submits the
Applicant was provided with procedural fairness and offered an opportunity to respond and
provide further information in support of her continuing employment, had she wished to do
so. In short, the Respondent denies that the Applicant was forced to resign under duress or
had been left with no option but to resign.
[14] The Respondent relies on the statement provided by Ms Russell, which stated that as
part of the Respondent’s normal exit process, she contacted the Applicant in the week
following her resignation to discuss confirmation of resignation, final pay and provision of
meeting notes. During these discussions, the Applicant did not indicate that her decision to
resign on 1 June 2021 was in any way a spontaneous decision. The Respondent submits that
this, and the fact the Applicant arrived at the meeting on 1 June 2021 with a pre-prepared
resignation letter, indicates that her decision was well considered and not made in the heat of
the moment.
[15] As to the bullying and harassment claims raised by the Applicant, the Respondent
submits that:
it takes the reporting of grievances, inappropriate conduct, bullying or harassment
very seriously;
the grievances raised by the Applicant in October 2019 regarding her branch
manager were managed at the time in accordance with the Respondent’s Workplace
Grievance Management Statement and appropriate action was taken. Efforts were
made to confirm and ensure the Applicant was satisfied and comfortable with the
outcome;
it never received a note or complaint, dated 9 July 2020, from the Applicant setting
out issues regarding her branch manager;
over the last 18 months, the Applicant had numerous interactions with the Regional
Sales Manager, Human Resources representatives and a Safety, Health and
Wellbeing Officer in the absence of her branch manager during which she could
have, but did not, raise any concerns;
the Applicant had ample opportunity to raise her grievances prior to the meeting on 1
June 2021; and
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the Respondent could not properly consider any mitigating factors in relation to the
show cause notice and meeting, because the Applicant resigned before they had an
opportunity to do so.
Applicant’s material
[16] The Applicant submits she was dismissed within the meaning of s.386 of the Act on 1
June 2021, either on the basis that the Respondent terminated the Applicant’s employment or,
alternatively, the Applicant resigned, but was forced to do so because of the Respondent’s
conduct.
[17] The Applicant confirms that she attended the meeting on 1 June 2021 with Mr
McCluskey and Ms Russell. However, she disputes parts of the record of meeting provided by
the Respondent. The Applicant’s evidence is that following a break in the meeting Mr
McCluskey said words to the effect of, “we have decided to terminate your employment.” The
Applicant asserts this statement was made unconditionally and before Mr McCluskey referred
to the Applicant being invited to respond to the allegations. Further, her evidence is that Mr
McCluskey only invited the Applicant to provide a response to the allegation after having
advised that her employment was terminated, and after the Applicant said she would resign
instead. The Applicant submits that her employment was thus terminated by the Respondent.
[18] Alternatively, the Applicant submits she was forced to resign because of the
Respondent’s conduct. She says her case can be distinguished from decisions where the
employee “jumped before they were pushed”1 given that the Respondent here had no intention
to consider her responses, and that termination was a foregone conclusion. She states that the
Respondent’s offer for her to respond to the show cause letter was simply a façade.
[19] The Applicant’s evidence was that during the meeting on 1 June 2021, she was
questioned in relation to performance issues and their causes. She asserts that on at least 10
occasions during that meeting, she said she was experiencing problems with the branch
manager, including but not limited to, intimidation, isolation and not feeling supported. The
Applicant and her husband advised they had prepared written notes for the Respondent to
consider in relation to the conduct of the branch manager, but mostly when the Applicant
raised these issues, the Respondent did not respond. The Applicant’s responses to the
Respondent’s questions consistently stated that her performance had declined, and was not
improving, due to the branch manager’s treatment of her. She says the meeting record
evidences the Respondent’s repeated failure and/or refusal to acknowledge her responses to
the Respondent’s questions, despite her clearly and consistently articulating a pertinent cause
for her performance issues.
[20] The Applicant submits that the Respondent’s conduct in the June meeting was a
failure to act, which constitutes conduct for the purposes of s.386 of the Act. Further, she
submits the Respondent’s failure or refusal to consider the branch manager’s conduct as a
reasonable, curable explanation for the Applicant’s performance issues, led the Applicant to
consider there was no possible alternate outcome other than termination of her employment.
1 For example, Wilson v Westpac Banking Corporation [2021] FWC 763.
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[21] She submits that similar to in Mohazab v Dick Smith Electronics (No 2),2 had the
Respondent not engaged in that conduct – i.e. the failure or refusal to recognise the impact of
the branch manager on the Applicant – and shown a genuine willingness to engage with the
Applicant’s responses, she would have remained in her employment and provided a response
to the Respondent’s concerns and understood that any such response would be considered.
The Applicant had demonstrated her willingness to participate in performance meetings
previously and, in the June meeting, accepted that her performance had declined. However,
she submits that her explanations for poor performance were not acknowledged or responded
to by the Respondent. So whilst the Respondent asserts that the Applicant had an opportunity
to respond, this was not a real or substantive opportunity considered in the context of the
whole of the Respondent’s conduct which evidences that the Respondent had no interest
whatsoever in legitimate responses the Applicant had already raised. She felt she was not
afforded procedural fairness and thus felt compelled to resign. On that basis, the Applicant
asserts that resignation was not simply a last resort attempt by the Applicant to avoid a
reasonable performance process, but rather the only outcome available to her in circumstances
where she was entirely denied any guarantee of procedural fairness.
[22] The Applicant submits that the circumstances in which the Applicant resigned are
similar to those in Boulic v Robot Building Supplies where the Respondent’s behaviour was
such that the Applicant could not be reasonably expected to have put up with it. Particularly,
in circumstances where the Respondent engaged in conduct calculated or likely to destroy or
seriously damage the relationship of confidence and trust between an employer and employee.
[23] The Applicant contends that the Respondent’s only intention in conducting the June
meeting was to ‘go through the motions’ of bringing her employment to an end. It was not a
genuine attempt to investigate the cause of the Applicant’s poor performance, or offer her an
opportunity to address any cause so as to improve. Rather, the Applicant says, the Respondent
was determined to dismiss her regardless of her responses.
[24] As to the pre-prepared resignation letter, the Applicant claims that this is not evidence
that the Applicant intended to or did voluntarily resign. She says, if that was in fact the
Applicant’s intention, she would have done so without sitting through the June meeting. The
Applicant’s evidence is that she prepared a resignation letter before the meeting not because
she wanted to resign, but in case there was no other option provided to her other than
termination. The Applicant submits that throughout the meeting it became obvious there was
no alternative course other than the termination and that only then did she provide the
Respondent with a letter of resignation, without legal advice, in a desperate attempt to salvage
any employment record for the purposes of future employment prospects. When asked
whether the Applicant would still be able to resign after providing a show cause response, the
Applicant was provided with no support or encouragement to await the outcome of the
process. In providing the resignation the Applicant stated, “I have had enough”. For the
reasons set out above, the Applicant submits that the Respondent’s jurisdictional objection
should be dismissed.
2 (1995) 62 IR 200.
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Legislative Framework
[25] Section 386 of the Act relevantly provides:
“Meaning of dismissed
(1) A person has been dismissed if:
(a) the person's employment with his or her employer has been terminated on
the employer's initiative; or
(b) the person has resigned from his or her employment, but was forced to do
so because of conduct, or a course of conduct, engaged in by his or her
employer.”
[26] Section 386 of the Act has created two clear grounds on which a claim could
potentially proceed. In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v
Shahin Tavassoli [2017] FWCFB 3941, the Full Bench expanded on the content of the two
limbs:
“[47] Having regard to the above authorities and the bifurcation in the definition of
“dismissal” established in s.386(1) of the FW Act, we consider that the position under
the FW Act may be summarised as follows:
(1) There may be a dismissal within the first limb of the definition in
s.386(1)(a) where, although the employee has given an ostensible
communication of a resignation, the resignation is not legally effective because
it was expressed in the “heat of the moment” or when the employee was in a
state of emotional stress or mental confusion such that the employee could not
reasonably be understood to be conveying a real intention to resign. Although
“jostling” by the employer may contribute to the resignation being legally
ineffective, employer conduct is not a necessary element. In this situation if the
employer simply treats the ostensible resignation as terminating the
employment rather than clarifying or confirming with the employee after a
reasonable time that the employee genuinely intended to resign, this may be
characterised as a termination of the employment at the initiative of the
employer.
(2) A resignation that is “forced” by conduct or a course of conduct on the
part of the employer will be a dismissal within the second limb of the definition
in s.386(1)(b). The test to be applied here is whether the employer engaged in
the conduct with the intention of bringing the employment to an end or whether
termination of the employment was the probable (sic) result of the employer’s
conduct such that the employee had no effective or real choice but to resign.
Unlike the situation in (1), the requisite employer conduct is the essential
element.”
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[27] The case of Mohazab v Dick Smith Electronics (No 2) (1995) 62 IR 200 is a
foundational case in determining what is classified as a ‘forced resignation’. There it was
stated:
“In these proceedings it is unnecessary and undesirable to endeavour to formulate an
exhaustive description of what is termination at the initiative of the employer but
plainly an important feature is that the act of the employer results directly or
consequentially in the termination of the employment and the employment relationship
is not voluntarily left by the employee. That is, had the employer not taken the action it
did, the employee would have remained in the employment relationship.”
[28] In Bupa Aged Care Australia Pty Ltd T/A Bupa Aged Care Mosman v Shahin
Tavassoli [2017] FWCFB 3941, the Full Bench helpfully expounded on Mohazab in the
following terms:
“[31] The approach taken in Mohazab that a termination of employment at the
initiative of the employer could be constituted by a “forced” resignation was followed
in numerous decisions made in respect of the various iterations of the termination of
employment scheme in the Workplace Relations Act 1996. These decisions most
notably include Rheinberger v Huxley Marketing Pty Limited and O’Meara v Stanley
Works Pty Ltd. In the former decision, the Industrial Relations Court (Moore J)
referred to Mohazab and said:
“However it is plain from these passages that it is not sufficient to demonstrate
that the employee did not voluntarily leave his or her employment to establish
that there had been a termination of the employment at the initiative of the
employer. Such a termination must result from some action on the part of the
employer intended to bring the employment to an end and perhaps action
which would, on any reasonable view, probably have that effect. I leave open
the question of whether a termination of employment at the initiative of the
employer requires the employer to intend by its action that the employment will
conclude. I am prepared to assume, for present purposes, that there can be a
termination at the initiative of the employer if the cessation of the employment
relationship is the probable result of the employer’s conduct.”
[32] In the latter decision a Full Bench of the Australian Industrial Relations
Commission said:
“[23] ... It is not simply a question of whether “the act of the employer
[resulted] directly or consequentially in the termination of the employment.”
Decisions which adopt the shorter formulation of the reasons for decision
should be treated with some caution as they may not give full weight to the
decision in Mohazab. In determining whether a termination was at the
initiative of the employer an objective analysis of the employer’s conduct is
required to determine whether it was of such a nature that resignation was the
probable result or that the appellant had no effective or real choice but to
resign.”
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[33] Notwithstanding that it was clearly established, prior to the enactment of the FW
Act, that a “forced” resignation could constitute a termination of employment at the
initiative of the employer, the legislature in s.386(1) chose to define dismissal in a way
that retained the “termination at the initiative of the employer” formulation but
separately provided for forced resignation. This was discussed in the Explanatory
Memorandum for the Fair Work Bill as follows:
“1528. This clause sets out the circumstances in which a person is taken to be
dismissed. A person is dismissed if the person’s employment with his or her
employer was terminated on the employer’s initiative. This is intended to
capture case law relating to the meaning of ‘termination at the initiative of the
employer’ (see, e.g., Mohazab v Dick Smith Electronics Pty Ltd (1995) 62 IR
200).
1529. Paragraph 386(1)(b) provides that a person has been dismissed if they
resigned from their employment but were forced to do so because of conduct,
or a course of conduct, engaged in by their employer. Conduct includes both
an act and a failure to act (see the definition in clause 12).
1530. Paragraph 386(1)(b) is intended to reflect the common law concept of
constructive dismissal, and allow for a finding that an employee was dismissed
in the following situations:
• where the employee is effectively instructed to resign by the employer in
the face of a threatened or impending dismissal; or
• where the employee quits their job in response to conduct by the
employer which gives them no reasonable choice but to resign.”
[29] It has been found that where an employee is subject to disciplinary procedures, this is
not in itself sufficient to demonstrate that a resignation was forced by actions of the
employer.3 In Pacific National (NSW) Ltd v Bell, Mr Bell resigned prior to the conclusion of a
formal determination regarding his false signing of timesheets.4 He stated in his resignation
letter that his resignation was “due to circumstances beyond his control”. Further, there was
reliable evidence that the employer stated that “it’s serious business and [Mr Bell’s]
employment may be terminated.” The Full Bench concluded that “this was no more than mere
fact, acknowledged by Mr Bell on his own appreciation of the position.” 5 A statement that an
employee may be terminated as a result of an investigative process is not, on its own,
determinative of whether a constructive dismissal has occurred.
[30] Similarly, Sherman v Sunrise Health Service Aboriginal Corporation demonstrates
that during an investigation, if the employer has not yet concluded to terminate the employee,
the process of investigating certain conduct will not be considered to ‘force’ a resignation.6
3 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
4 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
5 Pacific National (NSW) Ltd v Bell [2008] AIRCFB 555.
6 Sherman v Sunrise Health Service Aboriginal Corporation [2016] FWC 8903.
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[31] As I have previously stated in Jodie Moore v Woolworths Group Limited T/A Big W,
“it would be a perverse outcome to consider an objectively fair investigation and show cause
process as imposing forcibly upon the Applicant that they must resign.” 7 The usual purpose
of an investigation is not, of itself, to bring about termination. Rather, the intention is to
ascertain, with a degree of certainty, what event – or series of events – transpired and, if
relevant, their cause. Once that information is gathered and conclusions drawn, the employer
can decide what action is appropriate.
Consideration
[32] I have had regard to the submissions and evidence given by both parties.
[33] I accept that the Applicant did not arrive at the meeting on 1 June 2021 with the
immediate intention to resign, notwithstanding that she had prepared the resignation letter.
The existence of that letter simply demonstrates that resigning was, at the commencement of
the meeting, one of a number of possible outcomes envisaged by the Applicant.
[34] I am satisfied that the Respondent was undertaking a typical disciplinary process
whereby an individual is presented with the allegations made against them and asked to
respond. I accept the Respondent’s evidence that the Applicant was then offered 48 hours to
go away, consider her answers more fully and respond in writing.
[35] It seems that when the Applicant raised the branch manager’s conduct as being
causative to her poor performance, the Respondent did not have a fulsome response. Indeed,
the Respondent’s representatives likely expected that, having been raised by the Applicant,
those matters would be subject of investigation prior to any decision being made regarding
termination. Arguably, it would have been improper for either Mr McCluskey or Ms Russell
to respond in any substantial way to the alleged impact that the branch manager had on the
Applicant’s performance given the allegations had not been put to the branch manager or
otherwise investigated.
[36] That said, it seems that at some point during the meeting, the Applicant came to the
view that her employment was at risk. She had been confronted by numerous new allegations
regarding her poor performance and reminded of the two previous occasions when similar
concerns had been raised. Faced with these mounting matters, it seems that the Applicant
made the decision to resign from her employment, perhaps – rightly or wrongly – in
anticipation of the potential termination of her employment. I do not, however, accept that
was the only opportunity available to her. Had she not resigned, but instead responded to the
show cause notice and allowed an investigation to be conducted into the branch manager’s
conduct (as the Respondent had done in 2019), her employment may not have been
terminated. Or it may have. Either way, resigning was not the only option available to the
Applicant at the meeting on 1 June 2021. Nor, on any reasonable view, did the Respondent’s
conduct force the Applicant to resign.
7 Jodie Moore v Woolworths Group Limited T/A Big W [2020] FWC 963.
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[37] I am therefore satisfied, based on the evidence before me, that the Applicant
voluntarily resigned during the meeting on 1 June 2020.
[38] Accordingly, I order that the jurisdictional objection be upheld. The Applicant’s
application is thus dismissed.
DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer
PR732880
THE FAIR WORK MISSION THE SEAL
